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September 22, 2016

Chairwoman Edith Ramirez


The Federal Trade Commission
600 Pennsylvania Ave., N.W.
Washington, D.C. 20580
Dear Chairwoman Ramirez and FTC Commissioners:
The undersigned consumer privacy organizations write in support of the complaint the
Electronic Privacy Information Center (EPIC) and the Center for Digital Democracy (CDD)
recently filed concerning WhatsApps plan to transfer user data to Facebook in violation of
commitments the company previously made to subscribers.1 We are deeply concerned about the
impact this proposed change in data practices will have on the privacy and security of WhatsApp
users in the U.S. and across the world. We urge the FTC to investigate this matter and to fulfill
its obligation to prevent WhatsApp and Facebook from engaging in unfair and deceptive trade
practices.
WhatsApp has over one billion users worldwide,2 and its popularity has been due in large
part to its strong public commitment to privacy. The company has long made its pro-privacy
commitment a key part of its brand, underscored by numerous public statements and official blog
posts on the importance of confidential communications.3
When Facebook acquired WhatsApp in 2014, both companies made numerous promises
to the public and to the FTC that WhatsApps data privacy practices would not change.4
Consumer privacy organizations raised concerns about the acquisition, and the Commission

In the Matter of WhatsApp, Inc., (Aug. 29, 2016) (EPIC, CDD Complaint, Request for
Investigation, Injunction, and Other Relief), https://epic.org/privacy/ftc/whatsapp/EPIC-CDDFTC-WhatsApp-Complaint-2016.pdf.
2
WhatsApp Blog, One Billion (Feb. 1, 2014), https://blog.whatsapp.com/616/One-billion.
3
See, e.g., WhatsApp, Archived Privacy Policy (last modified July 7, 2012),
https://www.whatsapp.com/legal/?doc=privacy-policy&version=20120707 (We do not use your
mobile phone number or other Personally Identifiable Information to send commercial or
marketing messages without your consent . . . .); WhatsApp Blog, Just Wanted to Say a Few
Things (Nov. 9, 2009), https://blog.whatsapp.com/index.php/2009/11/a-few-things/ (Nov. 9,
2009); WhatsApp Blog, Why We Dont Sell Ads (Jun. 18, 2012),
http://blog.whatsapp.com/index.php/2012/06/whywe-dont-sell-ads/.
4
WhatsApp Blog, Setting the Record Straight (Mar. 17, 2014),
https://blog.whatsapp.com/529/Setting-the-record-straight; WhatsApp Blog, Facebook (Feb. 19,
2014) https://blog.whatsapp.com/499/Facebook; Cecilia Kang, Privacy Advocates Decry
Facebooks Purchase of WhatsApp, WASH. POST (Mar. 6, 2014),
https://www.washingtonpost.com/business/technology/privacy-advocates-decry-facebookspurchase-of-whatsapp/2014/03/06/2f14a56e-a569-11e3-84d4e59b1709222c_story.html?tid=hpModule_88854bf0-8691-11e2-9d71-f0feafdd1394.
Consumer Privacy Organizations in
Support of WhatsApp Complaint

September 22, 2016

responded with a clear warning that the companies must continue to honor their privacy promises
to WhatsApp users or risk violating Section 5 of the FTC Act.
The Commission stated the companies must obtain affirmative consent from WhatsApp
users before materially changing its practices for information it collected before the merger.5 The
FTC stated at the time that WhatsApp must continue to honor these promises to consumers.
Further, if the acquisition is completed and WhatsApp fails to honor these promises, both
companies could be in violation of Section 5 of the Federal Trade Commission (FTC) Act and,
potentially, the FTCs order against Facebook. The FTC has previously interpreted affirmative
consent to require opt-in consent, particularly in the context of material retroactive changes to
privacy promises.6
On August 25, 2016, WhatsApp announced plans to use and transfer customer data,
including users verified telephone numbers, to Facebook for user profiling and targeted
advertising.7 WhatsApp previously collected phone numbers and other personal information
from over one billion users with the promise that this information would not be used or disclosed
for marketing purposes. WhatsApps reversal on this promise is a material, retroactive change
that will apply to previously collected data. Contrary to FTC policy, WhatsApp does not intend
to provide clear notice or obtain customers affirmative express consent i.e., opt-in consent
before implementing these changes for previously collected information. Rather, these material,
retroactive changes are buried in WhatsApps lengthy revised privacy policy and consumers
have 30 days to opt-out.8
European authorities have already begun investigating WhatsApps reversal on the
privacy promises it made when seeking regulatory approval of Facebooks acquisition of the

Letter from Jessica Rich, Director of FTC Bureau of Consumer Protection, to WhatsApp and
Facebook (Apr. 10, 2014)
https://www.ftc.gov/system/files/documents/public_statements/297701/140410facebookwhatapp
l tr.pdf.
6
See FED. TRADE COMMN, FTC STAFF REP.: SELF-REG. PRINCIPLES FOR ONLINE BEHAV.
ADVERTISING n. 63 (Feb. 2009),
https://www.ftc.gov/sites/default/files/documents/reports/federal-trade-commission-staff-reportself-regulatory-principles-online-behavioral-advertising/p085400behavadreport.pdf (requiring
affirmative express consent (opt-in) for material retroactive changes to privacy promises). The
Commission has previously found that retroactive application of materially changed privacy
policies to previously collected consumer data is an unfair trade practice. See In re Gateway
Learning Corp., Decision and Order, No. C-4120 (2004),
http://www.ftc.e:ov/enforcementlcases-proceedings/042- 3047 /gateway-learning-corp-matter.
7
WhatsApp Blog, Looking Ahead for WhatsApp (Aug. 25, 2016),
https://blog.whatsapp.com/10000627/Looking-ahead-for-WhatsApp.
8
WhatsApp FAQ, How Do I Choose Not to Share My Account Information With Facebook to
Improve My Facebook Ads and Products Experiences?,
https://www.whatsapp.com/faq/en/general/26000016.
Consumer Privacy Organizations in
Support of WhatsApp Complaint

September 22, 2016

messaging service.9 European Union Competition Commissioner Margrethe Vestager has


indicated the EU is reconsidering its approval of WhatsApps 2014 merger with Facebook.10
Vestager stated that the companies promises not to merge user data was a part of the decision
[to approve the merger] so therefore were asking some follow-ups to find out whats going
on.11
WhatsApp plans to make material, retroactive changes to its numerous privacy promises
regarding the use and disclosure of user data without first obtaining users affirmative express
consent. This is exactly what the FTC said WhatsApp and Facebook cannot do. It is a clear
violation of the prohibition on unfair and deceptive trade practices the FTC is obligated to
enforce under Section 5 of the FTC Act.
We urge the Commission to fulfill its duty to protect consumer privacy, and to investigate
and enjoin WhatsApp and Facebooks proposed change in business practices.
We appreciate your attention to this important matter.
Sincerely,
Bill of Rights Defense Committee & Defending Dissent Foundation
Center for Digital Democracy
Center for Financial Privacy and Human Rights
Common Sense Kids Action
Constitutional Alliance
Consumer Action
Consumer Federation of America
Consumer Watchdog
Cyber Privacy Project
Demand Progress
Electronic Privacy Information Center
The FoolProof Foundation
Patient Privacy Rights
Privacy Rights Clearinghouse
Privacy Rights Now Coalition
Privacy Times
U.S. PIRG

Aoife White & Peter Levring, Facebook Grilled by EUs Vestager Over WhatsApp Merger UTurn, BLOOMBERG (Sep. 9, 2016), http://www.bloomberg.com/news/articles/2016-0909/facebook-grilled-by-eu-s-vestager-over-whatsapp-merger-u-turn.
10
Id.
11
Id.
Consumer Privacy Organizations in
Support of WhatsApp Complaint

September 22, 2016